SMT SULOCHANA W/O GURUNATH BHANDURAGI vs SHRI RAMCHANDRA S/O OMANNA ASTEKAR

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 4 DAY OF NOVEMBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI


REGULAR SECOND APPEAL NO.100737 OF 2025
(PAR/POS-)

BETWEEN:

1. SMT. SULOCHANA W/O. GURUNATH BHANDURAGI,
(MAIDEN NAME: SULOCHANA D/O. MOHAN ASTEKAR),
AGE: 44 YEARS, OCC. HOUSEHOLD,
R/O. NEAR KSRTC BUS STAND,
HALYAL, DIST. UTTAR KANNADA.

2. SMT. ARUNA W/O. KIRAN MALAVI,
(MAIDEN NAME: ARUNA D/O. MOHAN ASTEKAR),
AGE: 39 YEARS, OCC.HOUSEHOLD,
R/O. WEST COAST PAPER MILL, GATE NO.3,
DANDELI, TAL. DANDELI, DIST. UTTAR KANNADA.










…APPELLANTS
(BY SRI. SHUBHENDU A. AKALWADI, ADVOCATE)

AND:

1. SHRI RAMCHANDRA S/O. OMANNA ASTEKAR,
AGED ABOUT 80 YEARS,
OCC. NIL, R/O. M.C. PLOT, KASHENATI ROAD,
OPP. HANUMAN TEMPLE, ALNAVAR,
TQ. ALNAVAR, DIST. DHARWAD.

Digitally
signed by
BHARATHI
H M
Date:
2026.11.06
12:40:21
+0530
BHARATHI
H M

2. SMT. SUGANDHABAI W/O. MALLAPPA HOOVANNAVAR,
AGED ABOUT 82 YEARS,
OCC. HOUSEHOLD, R/O. NEHRU NAGAR, ALNAVAR,
TQ. ALNAVAR, DIST. DHARWAD.
3. SMT. CHANDRABAI W/O. KALLAPPA PEJOLLI,
AGED ABOUT 54 YEARS,

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OCC. HOUSEHOLD, R/O. NEHRU NAGAR,
BEHIND HANUMAN HOTEL, P.B. ROAD, BELAGAVI.

4. SMT. LEELAVATIBAI @ LALITA,
W/O. GUNDU GUNDA PATIL,
AGED ABOUT 52 YEARS,
OCC. HOUSEHOLD, R/O. GANESH NAGAR,
GUTTIGERI, TQ. HALYAL, DIST. UTTAR KANNADA.

5.




6.
SMT. SHARDABAI W/O. MOHAN ASTEKAR,
AGED ABOUT 62 YEARS, OCC. HOUSEHOLD,
R/O. SHIVAJI ROAD, ALNAVAR,
TAL. ALNAVAR, DIST. DHARWAD.

SHRI SHREEDHAR S/O. MOHAN ASTEKAR,
AGED ABOUT 38 YEARS, OCC. AGRICULTURE,
R/O. SHIVAJI ROAD, ALNAVAR,
TAL. ALNAVAR, DIST. DHARWAD.

7. SHRI SHREENIVAS S/O. MOHAN ASTEKAR,
AGED ABOUT 34 YEARS, OCC. AGRICULTURE,
R/O. SHIVAJI ROAD, ALNAVAR,
TAL. ALNAVAR, DIST. DHARWAD.
…RESPONDENTS
(BY SRI. R.V. ITAGI, ADVOCATE FOR R1;
SRI. B.S. SANGATTI, ADVOCATE FOR R2 TO R4;
SRI. D.A. BHANDEKAR, ADVOCATE FOR R5 TO R7)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.07/2022 DATED
24.10.2024 PASSED BY IV ADDL. DISTRICT AND SESSIONS JUDGE,
DHARWAD AND SET ASIDE THE JUDGMENT AND DECREE PASSED IN
O.S.NO. 113/1991 DATED 03.01.1996 PASSED BY PRL. CIVIL JUDGE
AND CJM, DHARWAD BY ALLOWING THIS APPEAL AND COST OF THIS
APPEAL BE AWARDED AND ETC.

THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE B. MURALIDHARA PAI

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ORAL JUDGMENT

Heard learned Counsel for the Appellants and learned
Counsel for the Respondents.

2. The daughters of Defendant No.2, namely Sri
Mohan, in OS No.113/1991 on the file of learned Principal
Senior Civil Judge and CJM, Dharwad have maintained this
regular second appeal.

3. The plaintiff namely Sri Ramachandra instituted
the suit in OS No.113/1991 against Sri Omanna and Sri
Mohan for the relief of partition and separate possession,
3rd
claiming his 1/ share in seven items of properties more
fully described as suit properties. The case of the plaintiff
is that the suit properties are the joint family properties of
3rd
the parties to the suit and he is entitled for 1/ share in
those properties. After contest, the said suit came to be
decreed vide the judgment dated 03.01.1996. The trial
3rd
court held that the plaintiff is entitled for 1/ share in all
the suit properties. Admittedly, none of the defendants in

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OS No.113/1991 preferred any appeal challenging the
judgment and decree passed by trial court.

4. Later, the plaintiff filed the petition in FDP
No.1/1997 praying to draw a final decree in terms of the
preliminary decree passed in OS No.113/1991. The said
petition came to be dismissed for non-prosecution in the

year 1997.

5. Subsequently, i.e., on 18.01.2022 the
appellants herein filed the appeal in RA No.7/2022
challenging the judgment and decree in OS No.113/1997
along with an application for condonation of delay in
preferring the appeal. During the pendency of the said
appeal, the plaintiff filed a fresh petition in FDP
No.65/2023 praying to draw a final decree in terms of the
preliminary decree passed in OS No.113/1991. Meanwhile,
the first appellate court held enquiry on the application for
delay condonation, heard both sides and dismissed the
application vide its Order dated 24.10.2024. Consequently,

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the first appellate court also dismissed the regular appeal
as it does not survive for consideration. Feeling aggrieved,

the appellants have preferred this regular second appeal.

6. Sri Shubhendu A. Akalwadi, learned Counsel
for the Appellants vehemently submitted that the first
appellate court was not justified in dismissing the appeal
as barred by limitation without appreciating the facts and
circumstances of the case. He submitted that the first
appellate court applied rigid and hyper technical view while
considering the grounds urged for condoning the delay. He
further submitted that the appellants are the legal heirs of
Defendants No.2 in OS No.113/1991, who were brought
on record only during the final decree proceedings and
thereby there was sufficient ground to condone the delay
in filing the appeal. He contended that the delay in filing
the appeal was neither willful nor deliberate and that the
dismissal of the appeal on technical ground has resulted in
grave miscarriage of justice. Hence, he prayed to allow the
appeal and set aside the order under challenge.

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7. As pointed out earlier, Sri Ramachandra
instituted the suit in OS No.113/1991 for the relief of
partition and separate possession, against his father i.e.,
Defendant No.1 and his brother i.e., Defendant No.2,
rd
claiming his 1/3 share in the suit properties. The
defendants contested the suit by filing their separate
written statements. Thereafter, the trial court decreed the
suit vide its judgment dated 03.01.1996 holding that the
rd
plaintiff is entitled to 1/3 share in all the suit properties.
Admittedly, Defendant No.2 - Sri Mohan was alive till
13.01.2018. It is also admitted that none of the
defendants preferred any appeal against the judgment and
decree passed in OS No.113/1991 by the trial court, and
thereby the said judgment and decree attained finality.

8. The appellants herein, who are the daughters of
Defendant No.2, i.e., Sri Mohan, preferred the appeal in
RA No.7/2022 on 17.01.2022. The contents of the
impugned order indicate that the appellants filed an
application for condonation of the delay of more than 42

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months i.e., from 23.06.2018 till 14.01.2022 on the
ground that they came to know about the litigation only on
service of notice in the month of June, 2018 on the
applications filed in final decree proceeding to bring the
legal representatives of their father, i.e., Sri Mohan. It is
their contention that after receipt of such notice initially
they had asked their brother Sri Shrinivasa to do the
needful and after waiting for pretty long period, they came
to know that he is incompetent and personally approached
a counsel and filed the appeal.

9. It is the contention of the appellants that their
father was an illiterate person and he was defrauded by
the plaintiff in a systematic well knitted plan hatched by
him to deprive their legitimate share in the suit properties.
They further contended that their father was not given
proper share in the suit properties and that they are
seeking their share as per the judgment of Hon’ble Apex
Court in Vineeta Sharma Vs Rakesh Sharma and
others reported in (2020) 9 SCC 1 .

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10. The first appellate court, while considering the
application for condonation of delay, noted that though the
father of the appellants contested the suit and aware of
final decree proceeding initiated by the plaintiff, he never
questioned the judgment and decree passed by the trial
court and that the appellants preferred the appeal after a
period of 25 years. Further, the first appellate court noted
the admissions of Appellant No.1 about the settlement
recorded before the Lok Adalath, its challenge by her
father before this Court and after the remand, allotment of
half share to her father. The case papers reveal that
Appellant No.1 has also admitted her knowledge about
appointment of Court Commissioner and entering the
name of her mother in the revenue records of the property
belonging to her father within one month of the death of
her father. Thus, having regard to the facts and
circumstances of the case, the first appellate court opined
that the appellants were well aware of the judgment and
decree passed in OS No.113/1991 and held that they have

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failed to show sufficient cause for condoning the delay in
preferring the appeal.

11. The first appellate court also observed that the
appellants are parties to the final decree proceeding and
they can contest their case in the said proceeding. The
materials on record make it clear that the appellants being
the daughters of Defendant No.2 in OS No.113/1991, they
cannot raise any new contention, which was not put forth
by their father. Further, it is not the case of the appellants
that they were necessary parties to the proceeding in OS
No.113/1991. Thus, on careful consideration of the
materials on record this Court holds that the first appellate
court was fully justified in dismissing the application for
condonation of delay, and consequentially, the dismissal of
the appeal. Hence, it is held that the facts and
circumstances of the case do not give raise to any
substantial question of law for consideration in this appeal.

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12. In the result, this Court proceeds to pass the
following:
ORDER
dismissed
The regular second appeal is .
Pending applications if any, stand disposed of, as
they do not survive for consideration.



SD/-
(B. MURALIDHARA PAI)
JUDGE


RH, ASN;
CT:PA
LIST NO.: 1 SL NO.: 32